Avoiding Retaliation Claims Underneath The Household Medical Go away Act – Employment and HR

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In addition to the obligation on employers to accommodate employees requesting insured family or sick leave, the Federal Family Medical Leave Act (FMLA) prohibits retaliation against an employee for exercising FMLA rights.

The United States Court of Appeals for the Fifth Circuit recently issued two decisions, Lindsey v Bio-Medical Applications of Louisiana, LLC and Campos v Steves & Sons, Incorporated, which also highlight the robustness of the FMLA’s anti-retaliation regime, stressing the importance of employers it is to avoid retaliation under the FMLA.

Factual background from Lindsey vs. Bio-Medical Applications of Louisiana, LLC

In the Lindsey case, the employee worked as a employed nurse for 17 years. During that time, she received promotions, including a promotion to clinic director, a position she held for nine years. Her performance ratings during her tenure were consistently commendable for 15 years.

As noted in the court’s opinion, “things had changed after a series of personal tragedies (of the employee) forced them to take FMLA vacations in 2016.” In response to her FMLA application, the employer approved an eight-week vacation. Even during the leave of absence, the employee carried out some of her professional tasks via e-mail and SMS.

When the employee returned from her vacation, she attended a meeting with her manager and a colleague, at which the colleague suggested “distributing”[ing] Medicines that have arrived for deceased patients, to other patients. “The staff member formally declined this suggestion as” illegal and unethical “had ever been brought against her in her 17-year tenure. The notice contained some general criticisms, but none exact dates or times of alleged presence errors.

Four months later, the supervisor issued a second corrective action form describing this action as a final written warning. This form identified three specific cases of absenteeism. The employee disagreed with this action and refused to sign the form. She later complained to a supervisor that she believed she was being “written to when she was returning from a leave of absence”.

Two months later, the employee received a performance rating that rated her “Needs Improvement,” the lowest rating she had ever received in her entire tenure. Her employment contract was terminated shortly after the employer alleged that she was absent from work for no good reason. In response, she sued the FMLA, demanding (partially) unlawful retaliation for taking FMLA leave.

Factual background of Campos v. Steve & Sons, Incorporated

The employee in the Campos case was hired as a welder in 2008. He was later promoted to a more physically demanding job involving standing, walking, sitting, and lifting objects weighing up to 50 pounds. In 2015, the employee learned that he had to undergo an open heart operation. Contrary to the real background of the Lindsey case, there has been a dispute in this case over whether the worker has properly informed the employer of the need for sick leave because the employer has not completed an FMLA designation notice according to its procedures. It was also controversial whether the employee duly notified the employer that he could return to work after a 12-week recovery period.

The worker eventually returned to work at the end of October but was not qualified by the employer to return to his previous job; the employer also found that there was no alternative point available for the employee. There was also evidence that the employer had expressed concern about the employee’s repeated FMLA leave requests following a previous extended FMLA leave. The employer terminated the employee’s employment relationship within one month of his return.

Applicable legal norm

In each case, the court determined the applicable legal standard for evaluating FMLA retaliation claims, which includes a three-part test:

1. Whether the employee was doing a sheltered job;
2. Whether the employer has fired the employee and
3. Whether there was a causal connection between protected activity and dismissal.

Results of every case

In each of these cases, the lower court ruled in favor of the employer with regard to the FMLA retaliation claim. In any case, the appeals court overturned that judgment.

Score in Lindsey vs. Bio-Medical Applications of Louisiana, LLC

In the Lindsey case, the court immediately proceeded to consider the “pretext” factor as the lower courts had ruled that each side had met their or her burdens on steps 1 and 2 of the three-part test. The court found that the judgment was incorrect for the employer because real facts came into question as to whether the reasons given by the employer were pretexts.

In particular, the court found that the grounds for termination given by the employer were “implausible”, including the facts:

1. That the employee received the first “attribution” of her 17-year career within three weeks of returning from the FMLA vacation,
2. That the first corrective action form she was given did not indicate a single date she was allegedly absent (along with the fact that her manager could not identify days or hours when she did not report to work);
3. That the second corrective action form she was given listed only three incidents (one allegedly occurring when her presence was improving and another while she was sick); and
4. That there was only one date in her resignation that management couldn’t reach her.

In finding sufficient basis for the court to conduct full main trial proceedings, the court found that Ms. Lindsey’s employer had failed to follow its own progressive disciplinary policy.

Result in Campos v. Steve & Sons, Incorporated

In the Campos case, the court found that the reasons given by the employer for the termination of the employment relationship were challenged sufficiently by the employee to demonstrate that the reasons given by the employer for the termination of the employment relationship were “pretext”. The court found in particular:

1. That the employee had submitted a “compliant” release to the working document;
2. That the 30-day period between the employee’s FMLA vacation expiration and termination of employment was close enough in time to potentially qualify as retaliation when combined with evidence to support the concerns expressed by management about the risk of a abandon employee’s excessive use of FMLA; and
3. That the company had not provided sufficient information to show that it had indeed offered an alternative position that the employee had refused.

In addition to overturning the employee’s negative FMLA retribution, the court also found that the employee had also submitted evidence of contradicting statements by the employer to the Equal Opportunities Commission during the administrative phase of the present proceedings.

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These two most recent FMLA retaliatory decisions highlight several threats to employers in properly managing their FMLA vacation plans, including lack of proper documentation and failure to follow established progressive disciplinary guidelines. These and other components of an FMLA vacation regime must be rigorously implemented and enforced to be effective.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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